Nothing Unusual About Diablo Canyon

The Second District Court of Appeal has ruled that the “unusual circumstances” rule laid out in the Berkeley Hillside case – which limits the use of exemptions under the California Environmental Quality Act – does not apply to a proposed lease extension for the Diablo Canyon nuclear power plant.

Rather, the court affirmed a lower court ruling saying that the State Lands Commission properly used the “existing facilities” categorical exemption under CEQA.

Located near Avila Beach in San Luis Obispo County, Diablo Canyon is operated by Pacific Gas & Electric under two leases with the State Lands Commission that were set to expire in 2018 and 2019. PG&E sought lease extensions to 2025, when it plans to shut down the plant. The commission approved the lease extensions but also invoked the CEQA exemption and therefore did not conduct any environmental analysis on the lease extension.

Environmentalists sued, claiming among other things that the existing facilities exemption was not meant to apply to nuclear power plants but, rather, only to transmission lines because of language that called “providing” electricity. The Second District shot this argument down. “The word ‘provide,’ as plainly understood, plainly encompasses the generation of power in addition to its mere transmission.”

More significantly, the court rejected the environmentalists’ argument that the lease extension constituted an “unusual circumstance” under Berkeley Hillside, thus requiring more analysis to justify the exemption – among them, the fact that the plant is a nuclear plant, the size of the plant, and its proximity to marine life.

In Berkeley Hillside, the California Supreme Court created a two-step test to determine whether and when a CEQA exemption can be overridden by unusual circumstances.

The size and location arguments could be important in future situations, as these are likely to be reasons cited to invoke the “unusual circumstances” in the future.

On the size question, the court concluded that the environmentalists failed to show how the plant’s size, which will not change under the lease extension, will create any adverse change. As to the location, the court said that while there may be impact on marine life, these impacts are current impacts and would not be altered by the lease extension.

The Case:

World Business Academy v. California State Lands Commission, No. B284300 (June 13, 2018).

The Lawyers:

For World Business Academy: Christina A. Humphrey, Humphrey & Rist, christina@humphreyrist.com

For State Lands Commission: Deputy Attorneys General Deborah Smith, Deborah.Smith@doj.ca.gov, and Christina Morkner Brown, Christina.Morkner@doj.ca.gov

For State Lands Commission: William White, Shute Mihaly & Weinberger, white@smwlaw.com

For Pacific Gas & Eletric: Damon P. Mamalakis, Armbruster, Goldsmith & Delvac, damon@agd-landuse.com